Rogers v. Anderson, (2000) 142 B.C.A.C. 1 (CA)

• Judge: Rowles, Mackenzie and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 23, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 142 B.C.A.C. 1 (CA);2000 BCCA 336

Rogers v. Anderson (2000), 142 B.C.A.C. 1 (CA);

    233 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. NO.009

Earl Wallace Rogers (plaintiff/respondent) v. Steven John Anderson (defendant/appellant)

(CA026215; 2000 BCCA 336)

Indexed As: Rogers v. Anderson

British Columbia Court of Appeal

Rowles, Mackenzie and Saunders, JJ.A.

May 23, 2000.

Summary:

The plaintiff was injured in a motor vehicle accident with the defendant, who admitted liability. At the time of the acci­dent, the plaintiff was acting in the course and scope of his employment. He received Workers' Compensation benefits of $14,039.13. He elected to seek his civil remedy against the defendant and was required by the Workers' Compensation Board (WCB) to repay the $14,039.13. He had to borrow the money from a bank and alleged that the loan was causing him finan­cial difficulty. The plaintiff applied under rule 18A for (a) judgment in the amount of $10,000, or an amount determined by the court as an advance on wage loss or non-pecuniary damages and (b) costs.

The British Columbia Supreme Court, in a decision reported in 21 B.C.T.C. 98, allowed the application and awarded the plaintiff $14,039.13. The circumstances warranted judgment on the issue of indemnity of the sum required to be repaid to the WCB for lost wages due to the motor vehicle accident. The defendant appealed.

The British Columbia Court of Appeal allowed the appeal.

Practice - Topic 5205

Trials - General - Advance payment of damages - The British Columbia Court of Appeal held that an order for an advance payment of damages for past wage loss may not be made under rule 18A - See paragraph 30.

Practice - Topic 5701

Judgments and orders - Summary judg­ments - General - The British Columbia Court of Appeal stated that the granting of a judgment under rule 18A was not a matter of discretion - See paragraph 29.

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - [See Practice - Topic 5701 ].

Cases Noticed:

Serban v. Casselman et al. (1995), 54 B.C.A.C. 297; 88 W.A.C. 297; 2 B.C.L.R.(3d) 316 (C.A.), consd. [para. 2].

Thambaithurai v. Insurance Corp. of Bri­tish Columbia, [1996] B.C.J. No. 691 (S.C.), consd. [para. 11].

Monahan v. Nelson, [1996] B.C.J. No. 1755 (S.C.), consd. [para. 14].

Britney v. Barber (1995), 17 B.C.L.R.(3d) 122 (S.C.), leave to appeal refused (1996), 70 B.C.A.C 79; 115 W.A.C. 79 (C.A.), refd to. [para. 26].

Statutes Noticed:

Insurance (Motor Vehicle) Act Regulations (B.C.), sect. 82 [para. 7].

Rules of Court (B.C.), Supreme Court Rules, rule 18A(11) [para. 28].

Counsel:

J.A. Graham, for the appellant;

E.A. Holekamp, for the respondent.

This appeal was heard before Rowles, Mackenzie and Saunders, JJ.A., of the Brit­ish Columbia Court of Appeal, at Victoria, British Columbia, on May 23, 2000, when the following opinions were delivered orally for the court:

Rowles, J.A. (Mackenzie and Saunders, JJ.A., concurring) - see paragraphs 1 to 30, 35;

Mackenzie, J.A. (Saunders, J.A., concur­ring) - see paragraphs 31 to 33.